HEATHER ALPER VS. JOSEPH WOLFSON (C-000008-18, ATLANTIC COUNTY AND STATEWIDE) ( 2019 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
    internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-5874-17T2
    HEATHER ALPER and
    LUCAS ALPER, a minor,
    Plaintiffs-Respondents,
    v.
    JOSEPH WOLFSON, BETTY
    SIMON, and BETTY SIMON
    TRUSTEE, LLC,
    Defendants-Appellants.
    ____________________________
    Submitted October 28, 2019 – Decided December 18, 2019
    Before Judges Fasciale, Moynihan and Mitterhoff.
    On appeal from the Superior Court of New Jersey,
    Chancery Division, Atlantic County, Docket No. C-
    000008-18.
    Jacobs & Barbone, PA, attorneys for appellants (Edwin
    J. Jacobs, Jr., and Joel Solomon Juffe, on the briefs).
    Jeffrey B. Saper, attorney for respondents.
    PER CURIAM
    Defendants Joseph Wolfson, Betty Simon, and Betty Simon Trustee, LLC
    (BST) appeal the trial judge's July 23, 2018 order denying their motion for
    attorney's fees and sanctions under N.J.S.A. 2A:15-59.1 and Rule 1:4-8. In the
    underlying action, plaintiffs Heather Alper and Lucas Alper filed a complaint
    against defendants, alleging that Wolfson wrongfully removed funds from
    various 529 accounts established by Simon for plaintiffs' benefit. Believing the
    complaint was frivolous, defendants requested several times that plaintiffs
    withdraw their complaint. Judge Michael Blee ultimately dismissed plaintiffs'
    complaint due to a lack of standing. However, the judge denied defendants'
    motion for attorney's fees and sanctions. Having reviewed the record, and in
    light of the applicable law, we affirm the denial of defendants' motion for
    attorney's fees and costs.
    We recite the relevant facts from the record. During 2005, Simon and her
    husband (now deceased) established a Utah Educational Savings Plan (UESP)
    account1 for the benefit of their granddaughter, Heather Alper.      They also
    established a non-UESP account for their grandson, Lucas Alper, which
    operated in the same manner as the UESP account. Simon was the owner of
    1
    A "UESP is a 529 plan . . . designed . . . to encourage saving for the future
    qualified higher education expenses of a beneficiary."
    A-5874-17T2
    2
    both accounts, so any decisions concerning the accounts, including making
    withdrawals, required her authorization.
    In 2015, before the current action, two of Simon's other granddaughters,
    Farah Zell Burns and Sandra Zell Neustadter, filed a complaint on behalf of their
    children against Wolfson and BST, two of the defendants in the current matter.
    Complaint, Burns v. Wolfson, No. ATL-C-17-15 (Ch. Div. Mar. 11, 2015). The
    Burns plaintiffs alleged that Wolfson fraudulently induced Simon to sign forms
    authorizing the withdrawal of funds from their children's UESP accounts and,
    without authorization, deposited the funds first into Simon's personal account
    and then into BST's account. Simon owned the UESP accounts when the alleged
    fraud occurred. The judge dismissed the Burns complaint with prejudice for
    lack of standing after finding that Simon had absolute discretion over the UESP
    accounts. The judge was unable "to find sufficient facts or even cognizable law
    that [would] allow[] the [c]ourt to adopt a theory of vicarious standing," and he
    added that Simon was the proper plaintiff for claims of conversion, fraud, and
    unjust enrichment.
    Turning to the current action, on January 18, 2018, plaintiffs filed a
    similar complaint against defendants.        Plaintiffs alleged that Wolfson
    fraudulently induced Simon to remove funds from Heather Alper's UESP
    A-5874-17T2
    3
    account so he could deposit the funds into BST's account.          According to
    plaintiffs' complaint, BST was an entity that the Simon family business "used as
    a private 'family bank,' receiving revenues and disbursing monies as directed by
    . . . Wolfson." Wolfson was BST's chief operating officer and "personally
    control[led], and ha[d] controlled, for several years, the finances of [BST],
    including, but not limited to, disbursements made by [BST], as well as any and
    all litigation pertaining thereto."
    Plaintiffs further alleged that Wolfson had "for several years, personally
    controlled, and continue[d] to personally control, all of . . . Simon's personal,
    financial and business interests" and that he was aware of Simon's "limited
    ability to read or understand documents" pertaining to her personal and business
    interests. Wolfson would "place documents in front of . . . Simon and show her
    where to sign them, without explaining the nature or purpose of those
    documents, and . . . Simon would sign said documents without question or
    hesitation." Then, he would use the signed withdrawal forms to remove small
    amounts not requiring a signature guarantee from Simon and would deposit the
    funds into BST's account and classify the transactions as a "loan" to BST. 2 With
    2
    Neither party has provided a certification from Simon to support or refute any
    of these assertions. Accordingly, the record is silent as to Simon's position.
    A-5874-17T2
    4
    regard to Lucas Alper's non-UESP account, plaintiffs do not allege the same
    scheme, but they claim that the funds in his account were also used as a "loan"
    to BST. Plaintiffs claim that on multiple occasions, Simon "denied knowledge
    or understanding of many of the transactions executed on her behalf and on
    behalf of . . . [BST], by . . . Wolfson."
    Plaintiffs further allege that the Simon family business was involved in a
    real estate sale, producing almost twelve million dollars, which was intended to
    pay off family members' loans to BST. However, plaintiffs assert that their
    "loans" were never repaid. Consequently, they filed suit against defendants,
    seeking restitution and asserting counts of constructive trust, fraud, conversion ,
    and unjust enrichment.
    Defendants sent a letter to plaintiffs, claiming that because plaintiffs
    lacked standing, their complaint was frivolous, in violation of Rule 1:4-8(a).
    Defendants also asserted that plaintiffs' complaint was improper in light of
    dismissal of the Burns complaint. Defendants informed plaintiffs that if they
    did not withdraw their complaint within twenty-eight days, defendants would
    apply for sanctions.     When plaintiffs refused to withdraw the complaint,
    defendants filed a motion to dismiss.
    A-5874-17T2
    5
    The judge granted defendants' motion, dismissing plaintiffs' complaint
    with prejudice due to a lack of standing. He found that Simon was the owner of
    the accounts, not an account holder as plaintiffs had claimed. As the account
    owner, Simon had complete discretion to withdraw and use the funds for any
    purpose. The judge also found that the accounts were not inter vivos gifts
    because Simon never delivered the funds to plaintiffs and "never surrendered
    ownership and dominion over the funds." Because plaintiffs had no possessory
    interest in the accounts, they lacked standing to sue for wrongful removal of the
    funds. In addition, the judge found that Simon was the proper party to pursue
    the claims.
    Plaintiffs then filed a motion for reconsideration, asking the judge to
    determine whether Simon was competent when she withdrew the funds from
    Heather Alper's account and whether Wolfson unduly influenced her.
    Defendants sent another letter to plaintiffs, requesting that they withdraw their
    frivolous motion. Plaintiffs declined to withdraw the motion, so defendants
    opposed it and cross-moved for attorney's fees and sanctions under the frivolous
    litigation statute.
    On June 8, 2018, the judge denied plaintiffs' motion for reconsideration
    with prejudice, reasoning that he had previously found that plaintiffs lacked
    A-5874-17T2
    6
    standing, so there was no reason to consider the substance of any further
    allegations in the complaint. The judge was "perplexed that the plaintiffs asked
    the [c]ourt to consider a claim of mental incapacity" because plaintiffs' only
    relevant pleadings amounted to an allegation of undue influence. He also found
    it "perplexing . . . that [plaintiffs' attorney] . . . would make a contention that the
    [c]ourt overlooked the issue of undue influence when it did not because it
    addressed it" by stating that there was no need to further consider plaintiffs'
    allegations since plaintiffs lacked standing.
    On July 23, 2018, the judge denied defendants' cross-motion for attorney's
    fees and sanctions.      Although he "was perplexed by the inadequacies of
    [p]laintiff's motion," he did not find that plaintiffs acted in bad faith and
    "intended to engage in harassing and vexatious litigation." This appeal ensued.
    On appeal, defendants argue that the judge erred in denying their motion
    for attorney's fees and sanctions under the frivolous litigation statute because he
    failed to consider N.J.S.A. 2A:15-59.1(b)(2). Defendants contend that the judge
    should have found that plaintiffs knew or should have known that they lacked
    standing to pursue their claims because Simon owned the accounts at the time
    of the alleged wrongful withdrawals, and defendants informed plaintiffs of this
    A-5874-17T2
    7
    issue several times. 3    Defendants further contend that plaintiffs are liable
    because they misrepresented facts by referring to Simon as an account holder
    and referring to the accounts as gifts. Defendants assert that plaintiffs either
    intentionally misstated these facts or failed to conduct a due diligence
    investigation, but regardless of the cause, plaintiffs knew or should have known
    that they lacked standing to pursue their claims.
    We review a denial of an award of attorney's fees and sanctions for
    frivolous litigation for an abuse of discretion. Masone v. Levine, 
    382 N.J. Super. 181
    , 193 (App. Div. 2005) (citing DeBrango v. Summit Bancorp, 328 N.J.
    Super. 219, 229 (App. Div. 2000)). Reversal is warranted if the decision "was
    not premised upon consideration of all relevant factors, was based upon
    consideration of irrelevant or inappropriate factors, or amounts to a clear error
    3
    While plaintiffs' allegations would be more convincing if Simon had certified
    that they were true, that defendants did not provide any certification from Simon
    is equally if not more suspect. The record contains no firsthand account from
    Simon as to her position in this litigation. Additionally, we find it concerning
    that the same attorney represents both Wolfson and Simon in this action, which
    appears to be a conflict of interest. See RPC 1.7(a) ("[A] lawyer shall not
    represent a client if the representation involves a concurrent conflict of interest.
    A concurrent conflict of interest exists if . . . there is a significant risk that the
    representation of one or more clients will be materially limited by the lawyer's
    responsibilities to another client[.]").
    A-5874-17T2
    8
    in judgment." 
    Ibid. (citing Flagg v.
    Essex Cty. Prosecutor, 
    171 N.J. 561
    , 571
    (2002)).
    Under the frivolous litigation statute, a judge may award reasonable
    attorney's fees and costs to a prevailing party in a civil action "if the judge finds
    at any time during the proceedings or upon judgment that a complaint . . . of the
    non-prevailing person was frivolous." N.J.S.A. 2A:15-59.1(a)(1). This statute
    applies only to the conduct of parties, not their attorneys. McKeown-Brand v.
    Trump Castle Hotel & Casino, 
    132 N.J. 546
    , 549 (1993). A complaint is
    frivolous if
    (1) [it] . . . was commenced, used or continued in bad
    faith, solely for the purpose of harassment, delay or
    malicious injury[,] or
    (2) [t]he nonprevailing party knew, or should have
    known, that the complaint . . . was without any
    reasonable basis in law or equity and could not be
    supported by a good faith argument for an extension,
    modification or reversal of existing law.
    [N.J.S.A. 2A:15-59.1(b).]
    "[F]alse allegations of fact [do] not justify the award of counsel fees, unless they
    are made in bad faith, 'for the purpose of harassment, delay or malicious injury.'"
    
    McKeown-Brand, 132 N.J. at 561
    (quoting N.J.S.A. 2A:15-59.1(b)(1)). If the
    non-prevailing party made "an honest attempt to press a perceived, [though] ill-
    A-5874-17T2
    9
    founded claim," the judge should not find that they acted in bad faith. 
    Id. at 563.
    The prevailing party bears the burden to show that the non-prevailing party acted
    in bad faith. 
    Id. at 559.
    Under Rule 1:4-8(a), sanctions for frivolous filings may also be available.
    An attorney that signs, files, or advocates a pleading or motion certifies, among
    other things, that
    (1) the paper is not being presented for any improper
    purpose, such as to harass or to cause unnecessary delay
    or needless increase in the cost of litigation; [and]
    (2) the claims . . . therein are warranted by existing law
    or by a non-frivolous argument for the extension,
    modification, or reversal of existing law or the
    establishment of new law.
    [R. 1:4-8(a).]
    Before applying for sanctions, the moving party must "serve[] written notice and
    demand . . . to the attorney . . . who signed or filed the paper objected to." R.
    1:4-8(b)(1). The notice must
    (i) state that the paper is believed to violate the
    provisions of this rule, (ii) set forth the basis for that
    belief with specificity, (iii) include a demand that the
    paper be withdrawn, and (iv) give notice, except as
    otherwise provided herein, that an application for
    sanctions will be made within a reasonable time
    thereafter if the offending paper is not withdrawn
    within [twenty-eight] days of service of the written
    demand.
    A-5874-17T2
    10
    [R. 1:4-8(b)(1).]
    A party seeking to recover attorney's fees under the frivolous litigation statute
    must also comply, to the extent practicable, with Rule 1:4-8. Toll Bros., Inc. v.
    Township of West Windsor, 
    190 N.J. 61
    , 69 (2007) (quoting R. 1:4-8(f)).
    The court must strictly interpret the frivolous litigation statute and Rule
    1:4-8 against the applicant seeking attorney's fees and/or sanctions.           See
    LoBiondo v. Schwartz, 
    199 N.J. 62
    , 99 (2009) (discussing R. 1:4-8); 
    DeBrango, 328 N.J. Super. at 226
    (citing 
    McKeown-Brand, 132 N.J. at 561
    -62) (discussing
    N.J.S.A. 2A:15-59.1). A strict interpretation recognizes "the principle that
    citizens should have ready access to . . . the judiciary." Belfer v. Merling, 
    322 N.J. Super. 124
    , 144 (App. Div. 1999) (citing Rosenblum v. Borough of Closter,
    
    285 N.J. Super. 230
    , 239 (App. Div. 1995)).         A judge should only award
    sanctions for frivolous litigation in exceptional cases. See Iannone v. McHale,
    
    245 N.J. Super. 17
    , 28 (App. Div. 1990).
    To award attorney's fees for frivolous litigation, we have required a
    showing of bad faith. See Ferolito v. Park Hill Ass'n, 
    408 N.J. Super. 401
    , 410-
    11 (App. Div. 2009) (citing 
    McKeown-Brand, 132 N.J. at 549
    ). The frivolous
    litigation statute requires a finding that plaintiffs (1) acted in bad faith or (2)
    lacked a "reasonable" legal or equitable basis for their claims and "a good faith
    A-5874-17T2
    11
    argument for an extension, modification or reversal of existing law." 4 N.J.S.A.
    2A:15-59.1(b).
    With respect to defendants' contention that plaintiffs acted in bad faith by
    filing the complaint and motion for reconsideration, we find that defendants'
    argument ignores the substance of plaintiffs' claims.       Upon our review of
    plaintiffs' complaint, we find that the allegations appear to form the basis for an
    undue influence claim. See Pascale v. Pascale, 
    113 N.J. 20
    , 30 (1988) (citations
    omitted) ("In respect of an inter vivos gift, a presumption of undue influence
    arises when the contestant proves that the donee dominated the will of the donor,
    or when a confidential relationship exists between donor and donee."). Here,
    plaintiffs alleged that Wolfson knew that "Simon had a limited ability to read or
    understand documents," and he "would merely place documents in front of . . .
    Simon and show her where to sign them, without explaining the nature or
    purpose of those documents, and that . . . Simon would sign said documents
    without question or any hesitation." Further, plaintiffs alleged that many times,
    Simon "denied knowledge or understanding of many of the transactions
    4
    Similarly, Rule 1:4-8(a)(2) requires a finding that plaintiffs' complaint lacked
    "claims . . . warranted by existing law or by a non-frivolous argument for the
    extension, modification, or reversal of existing law or the establishment of new
    law."
    A-5874-17T2
    12
    executed on her behalf and on behalf of . . . [BST], by . . . Wolfson." Plaintiffs'
    complaint does not explicitly allege undue influence, but their allegations
    suggest it. Namely, plaintiffs explain how Wolfson dominated Simon's will and
    consequently was able to withdraw funds on her behalf, while she lacked an
    understanding of the effects of the transactions.
    Thus, although plaintiffs were the wrong individuals to pursue this action,
    we reject defendants' contentions that plaintiffs pursued frivolous litigation
    because the complaint and motion for reconsideration did not lack a reasonable
    legal basis. See R. 1:4-8(a)(2); N.J.S.A. 2A:15-59.1(b)(2). Accordingly, we
    conclude that the judge did not abuse his discretion in denying defendants'
    motion for attorney's fees and sanctions.
    To the extent we have not specifically addressed any remaining arguments
    raised by defendants, we conclude they lack sufficient merit to warrant
    discussion in a written opinion. R. 2:11-3(e)(1)(E).
    Affirmed.
    A-5874-17T2
    13